My husband sustained a brain injury when he was playing soccer more than a year ago. His recovery has been slow and, so far, he hasn’t been able to return to his job. He is home alone all day while I am at work and I recently found out that he has been spending most of his time buying stuff on TV. He’s also given large sums of money to any organization that phones or stops by looking for a donation. I know this is not his fault — this is his injury — but if things go on like this, we’ll be broke. Is there anything I can do?
Individuals who have sustained a traumatic brain injury often have cognitive, emotional, and behavioral difficulties that impair their ability to manage their financial affairs. The assistance that is required depends on the distinct needs of the individual and can range from merely providing help to pay bills to complete management of a person’s financial affairs.
It is important to fashion the least restrictive remedy to protect a person with a brain injury from his or her inability to manage finances and to allow the person as much freedom and personal control as possible. In other words, a remedy needs to be found under the law that is tailored to the individual and limited to only those activities for which a person needs assistance.
The first step may be to work with the team that provided your husband with rehabilitative services. If he still has a case manager, that person might also be able to help craft a solution. The simplest answer would be for him to agree to not have access to his credit cards when you are not home. Together you might also agree that he can have one credit card with a modest maximum limit that will not allow any overage. He could also have a small amount of cash that he could give in the case of an in-person donation.
The next step would involve a legal proceeding. In New York State, as in most states, the appropriate legal proceeding to determine the needs of an individual with some incapacity, in need of financial management assistance, is the guardianship proceeding. The rules for Guardianship in New York State are found in Article 81 of the Mental Hygiene Law.
The New York guardianship scheme focuses on the least restrictive alternative and on the decisional capacity of a particular person, his/her functional limitations, rather than any underlying mental or physical condition or impairment. In this manner, appropriate assistance can be crafted in many instances without the necessity of appointing a guardian over all aspects of that individual’s life or finances. The ultimate goal is to provide a guardian with only those powers necessary to assist the incapacitated person to compensate for his/her limitations and to allow that person the greatest amount of independence and self-determination, always keeping in mind the person’s ability to appreciate and understand his or her functional limitations.
In deliberating on the need to appoint a guardian for a person who has cognitive, emotional, or behavioral limitations following a brain injury, it is important to consult with a qualified attorney to obtain necessary legal advice and assistance. In many states, there are legal services available to those who cannot afford private legal counsel in guardianship proceedings. It is best to inquire of your local court’s guardianship office to obtain further information and available resources.
Shana De Caro, Esq. is partner at De Caro & Kaplen, LLP. Ms. De Caro serves on the board of directors for both the Brain Injury Association of America and the New York Academy of Trial Lawyers. She is first vice president of the American Academy of Brain Injury Attorneys and serves as secretary of the Civil Justice Foundation.